9 Oct 2020Legal updates
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This guide assists lawyers representing children in the criminal courts and explains how the Criminal Practice Directions can support in this context. The Criminal Practice Directions supplement the Criminal Procedure Rules by guiding judicial discretion, detailing a range of adjustments that should be considered in all criminal cases that involve children.
Published June 2021
This legal guide is intended to assist lawyers representing children in the criminal courts and explains how the Criminal Practice Directions1 can support in this context.
The Criminal Practice Directions supplement the Criminal Procedure Rules by guiding judicial discretion, detailing a range of adjustments that should be considered in all criminal cases that involve children. Throughout this guide, we refer to both the Rules, the CrimPR, and the Practice Directions, the CrimPD.
It is well known that many children appearing in criminal courts have communication or learning difficulties.2 They are disproportionately likely to have a neurodisability, mental health problem or to have suffered a traumatic brain injury.3 These factors, as well as age and normal adolescent development, can make it difficult for children to participate in criminal proceedings, particularly in the Crown Court.
Defendants have a right to effective participation when they appear in criminal proceedings. This right has been articulated by the European Court of Human Rights (ECtHR)4 through Article 6 of the European Convention on Human Rights (ECHR), ‘right to a fair trial’. The CrimPD is the key domestic provision that sets out in detail ways to implement that effective participation right – it details a range of adjustments to proceedings that should be considered when children appear in the criminal courts.
The CrimPR are the ‘rules’ governing the practice and procedure to be followed in the criminal courts.5 They are secondary legislation.
The CrimPD, on the other hand, are not secondary legislation. They:
The CrimPD permits the use of modifications to the trial process, including:8
In 1999, in the case of V v UK13 the ECtHR was asked to consider whether there had been a violation of Article 6 of the ECHR where two very young children had been tried in the adult Crown Court. The defendants were 11 years old at the time of their trials, and both had learning difficulties. The court had to decide whether the children had been able to ‘effectively participate’ in their trial.14 The ECtHR was critical of the way England and Wales treated young children in the criminal justice system, stating that:
... it is essential that a child charged with an offence is dealt with in a manner which takes full account of his age, level of maturity and intellectual and emotional capacities, and that steps are taken to promote his ability to understand and participate in the proceedings.15
The ECtHR further noted that proceedings involving children in the adult Crown Court should be conducted in such a way as ‘to reduce as far as possible [the child defendant’s] feelings of intimidation and inhibition’.16
The decision led to domestic reforms for children in the criminal justice system in England and Wales in the form of a Criminal Practice Direction – ‘Practice Direction (Crown Court: Young Defendants)’ – issued in 2000 by the then Lord Chief Justice (Lord Bingham), which set out the steps that should be taken in the trials of ‘young defendants’.17
In 2000, the CrimPD applied specifically and exclusively to young defendants, which it defined as ‘children and young persons’, aligning with the language of other legislation concerning children. Since 2000, there have been various amendments and overhauls that have extended the protective elements of the CrimPD to include all vulnerable people in court, whether children or adults. This legal guide explains the CrimPD as it can be applied specifically to children in the criminal courts.
The CrimPR state that the parties are under a duty to alert the court to any potential impediment to the defendant’s effective participation in the trial.18
The court is under a duty to:
The court discharges the duty by (a) identifying the needs of witnesses at an early stage and (b) making provision for arrangements (whether statutory special measures or other modifications to the trial process) to meet those needs.
The court must identify the needs of witnesses at an early stage.30
Advocates should consult and follow the relevant guidance whenever they prepare to question a young or otherwise vulnerable witness or defendant. Examples given are:
Limitations will arise where there is a risk of a child ‘failing to understand, becoming distressed or acquiescing to leading questions’. Where limitations on questioning are prescribed, these limitations:
* The CrimPR, updated in April 2021, postdates 3F.13 and therefore it is this which should be followed when considering the appointment of an intermediary to facilitate a defendant’s participation. CrimPR 18.27(3) makes clear that the court may exercise its power to appoint an intermediary (a) for the duration of every hearing that the defendant is due to attend; (b) for the duration of any specified such hearing(s), or for the duration of a specified part of such a hearing; or (c) for a specified purpose during a hearing. CrimPR 18.27(4) provides that, unless the court otherwise directs, the appointment of an intermediary extends to facilitating the defendant’s communication with their legal representatives for the duration and for the purpose of the appointment. For more information, see Practical Advice below.
The new amendments to the CrimPR state that the court must exercise its power to appoint an intermediary to facilitate a defendant’s effective participation in the trial where the defendant’s ability to participate is likely to be diminished by reason of age, if the defendant is under 18.41 The CrimPR give special consideration to providing intermediary support to those under the age of 18 and the impact on their ability to ‘give evidence, and understand what is said and done by the court and other participants’42 which should be considered alongside 3F.24–3F.26 (above)
In addition to the specific criteria of age, at 18.27(2) the CrimPR set out the matters the court must consider when asked to exercise its power to appoint an intermediary for a defendant:
It is the duty of the parties to alert the court as to any reason why live links or telephones should not be used (3N.3).
Reasons for not using a live link include:
The court may allow a defendant to observe the trial via live link, but:
Defence representatives should remember that special measures under the YJCEA 1999 and CrimPR Part 18, including the use of a live link, are available to defence as well as to prosecution witnesses who meet the statutory criteria.50
Defence representatives should always consider whether their witnesses would benefit from giving evidence by live link and should apply for a direction if appropriate, either at the case management hearing or as soon as possible thereafter.50
A legally aided party can apply to the LAA to cover the costs of the expert report. In order to do this, prior authority will be needed from the LAA. It is often useful to have written advice explaining the need for the report. Where the report has been
requested by the court, this should be clearly explained.
Written by Professor Kathryn Hollingsworth and Shauneen Lambe in collaboration with Claire Mawer, Katya Moran, and Laura Cooper at the Youth Justice Legal Centre. With thanks to Daniella Waddoup (Doughty Street Chambers).
This guide was produced by the Youth Justice Legal Centre, part of Just for Kids Law, in collaboration with The Children’s Rights Group at Doughty Street Chambers, and funded by The Dawes Trust.